May 20, 2024

While the power of the pardon is fundamentally undemocratic, the president should use it to do some good while he can.

Former Baltimore state attorney Marilyn Mosby answers questions at a press conference about the arrests of police officers involved in the death of Freddie Gray on May 1, 2015.

(Lloyd Fox / Baltimore Sun / Tribune News Service via Getty Images)

Last week, the NAACP sent a letter to Joe Biden asking him to pardon Marilyn Mosby, the former state’s attorney for Baltimore. The organization was joined by a host of other Black social justice organizations, including the National Urban League, the National Action Network, and the National Bar Association (the largest legal group of Black attorneys).

It’s rare to see all of these organizations united in support of a prosecutor, but Mosby’s case is special. Mosby attracted national attention as a “progressive” prosecutor for her willingness to charge the six police officers involved in the murder of Freddie Gray, a young Black man who was killed while in police custody. But she was also the same old-same old prosecutor who was responsible for the bogus prosecution of Keith Davis Jr., a young Black man who was shot at 32 times by the police (three of the bullets landed) and was then charged with a robbery and a murder he didn’t commit—and was exonerated (and had his charges dismissed) only when another prosecutor replaced Mosby in Baltimore last year.

After leaving office, Mosby was indicted and convicted on two counts of perjury and one count of making false statements on a loan application. It appears she tried to take advantage of the Coronavirus Aid, Relief, and Economic Security (CARES) Act to withdraw $90,000 from her own retirement account.

I would not necessarily endorse Mosby’s prosecutorial record, or really any prosecutor’s record, but I can support the efforts to see her pardoned nonetheless. That’s because I can spot a wrongful prosecution when I see one. Mosby is on the receiving end of a malicious political prosecution over the kind of infraction that normally goes unpunished. The Department of Justice—the same one that has not prosecuted Trump for any of his financial crimes and slow-walked charging him in connection with the white domestic terrorist attack on the Capitol—was all over Mosby for fraudulently accessing her own retirement money. The federal prosecutor leading the investigation into Mosby’s finances is a man named Leo Wise. Wise and Mosby had run-ins before, over Wise’s selective investigations into members of the Congressional Black Caucus and what the NAACP calls his “refusal to seek a just outcome for those wrongfully convicted—people of color.” Many people might know Wise as one of the lead investigators in the DOJ’s case against Hunter Biden.

For me, any case Wise touches is suspect. He should have been drummed out of the DOJ the moment Democrats took power, but Merrick Garland exists, and the Biden administration has committed flagrant malpractice by refusing to get rid of bad prosecutors left behind from the Trump years.

So here we are, with Mosby facing as many as 40 years in prison when she is sentenced on May 23—and with Biden holding the near-unchecked power to pardon her.

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The presidential pardon power is plenary, which means that the president can pardon any person for any federal crime for any reason, or no reason at all. It’s not subject to Congressional veto or Supreme Court review. Biden, like other presidents, consults with the Office of the Pardon Attorney, who is an official inside the DOJ, but the decision is his. Biden could fix the mistake of leaving behind Trump prosecutors by pardoning everybody those prosecutors go after, including Mosby.

If we hadn’t just lived through the Donald Trump presidency, and if we weren’t staring down the barrel of his possible return, pardoning Mosby would be an easy argument. She’s an accomplished Black woman who has the support of all the racial justice organizations; her crime involved accessing her own money, not stealing from others; and the prosecutor who went after her has a history of going after Black people in power. Pardoning Mosby is an election year win for Biden with organizations that he needs to support him, and it costs him functionally nothing to do it. It’s politics made simple.

But we did live through Trump, and we know that Trump used and is planning to use the pardon power as a loyalty generator. Biden’s decision will likely be viewed in the context of pardons made by his predecessor. Trump used the pardon power corruptly and abusively. He pardoned essentially everybody who took the vow of omertà and kept their mouths shut as they were charged and convicted for crimes they likely committed with Trump’s knowledge (or even at his direct orders). Trump pardoned his former campaign manager Paul Manafort, who had been convicted for conspiracy, money laundering, and failing to register as a foreign agent. He pardoned Charles Kushner, father of his son-in-law Jared, who had been convicted for tax evasion. He pardoned longtime hatchet man Roger Stone, who was indicted for lying to Congress. He pardoned his national security adviser Michael Flynn, who pleaded guilty to lying to the FBI, twice.

Trump didn’t just pardon all of his cronies who could have implicated him in their crimes, he also used pardons for political effect. Any Black person who could get Kim Kardashian to take their phone call had a pretty good chance of getting a pardon in the Trump administration. Trump would then trot out the negroes he freed at his campaign rallies and use them as props like he was Abraham Lincoln.

The world in which everybody from Steve Bannon to Lil’ Wayne can get a pardon but Mosby might not is insane, but it is a classic example of Republicans using maximal power to their advantage. The presidential pardon is the most unchecked form of raw political power in the entire system of government—and we can expect Trump to use it to maximum effect if he forces his way back to the White House. Trump has already made noises about pardoning all of the January 6 insurrectionists who have been incarcerated since their attack. I am sure he will. If Trump gets back in the White House, I think he will pardon every single person who fought for him to overturn the 2020 election and overthrow the government. If anyone thinks Biden’s pardon restraint will limit Trump’s eagerness to pardon domestic terrorists, they simply haven’t been paying attention to how Trump operates. Trump is going to do what he’s going to do, regardless of what Biden does now.

I want to stop Trump from exercising his unlimited ability to pardon those willing to riot for him, but my solution is not to restrain Biden, it’s to fix the pardon power. I happen to think that plenary presidential pardons are incongruous with democratic self-government. The pardon power is a holdover from the age of kings and queens, when the whims of despots could short-circuit an entire legal system. Trump’s use of the pardon power while he was in office all but proves that it’s a power presidents should not have.

The justice system makes a ton of mistakes, and I am all for every form of post-conviction review imaginable to exonerate the wrongly convicted, commute the sentences of people who have been railroaded by the system, and free those maliciously targeted by racially unjust and unfair laws. But having the power to simply overrule the entire system, by fiat, based largely on who is politically connected enough to grab the president’s attention, just doesn’t sound like the kind of thing that should regularly happen in a country of laws. A pardon is not a reform, it’s a boon, and our justice system shouldn’t be reliant on blessings from on-high for it to work properly.

Indeed, if Trump pardons the J6 terrorists, that would actually be in keeping with the traditional uses of the pardon power, throughout American history. Mass clemency actions were the most famous uses of the power until Gerald Ford pardoned Richard Nixon. George Washington pardoned all members of the Whiskey Rebellion. Andrew Johnson pardoned all Confederate soldiers. Jimmy Carter pardoned all Vietnam draft dodgers. Presidential pardons of mass groups of rebels is, sorry to say, nothing new.

Still, if we want to go down the mass pardon road Trump will surely take if he’s elected, Biden could also do that. Biden has already pardoned more people than Trump, he just does it without forcing the people he’s freed to come to a rally and lick his boots. In late 2023, Biden pardoned thousands of people jailed for simple marijuana possession. That was a good move, but the effect was muted: most marijuana users are not federal prisoners, but, rather, have been convicted on state charges, which the president cannot pardon.

Biden could be making more use of this expansive power, and make more of a political statement while doing it. He could pardon all nonviolent federal drug offenders, categorically. Or he could commute the sentences of every single prisoner on federal death row and instead change their sentences to life in prison. Or he could pardon federal prisoners over 55 (because our prison population is aging faster than the population as a whole, and the chance of recidivism among the elderly is very small). There are lots of ways to skin the categorical pardon cat, it doesn’t have to be used just for white people who start a rebellion. Biden could pick nearly any class of people who should not be in a federal penitentiary, and free them.

Which brings me back to Mosby. Why do we live in a world where Trump would pardon Hannibal Lecter, if Lecter could eat 11,000 Democratic voters in Georgia, but Biden hasn’t pardoned Mosby already? Presidents can use this power any way they want. Trump did. Why shouldn’t Biden? Again, Biden has already pardoned a lot of people, but unlike Trump, he doesn’t have a face for his clemency and surrogates spreading the good news of his mercy. Mosby could be that kind of surrogate. She’d be better at it than Rod freaking Blagojevich, whose sentence Trump commuted.

If Democrats aren’t going to use the pardon power as brutally and efficiently as Republicans, then Democrats should be trying to get rid of the power. I have no more use for powers only Republicans are allowed to use to their maximum effect. I have no more use for rules only Democrats follow. I think Biden should pardon every nonviolent federal convict he can get his hands on until Republicans force him to stop through a constitutional amendment to limit his use of power. Then he should turn around, sign the amendment, and campaign across the country for it to be ratified.

I think presidential pardons should be stopped, but since they exist, Mosby should get one. Democrats should use the power they have, when they have it, because Republicans always use every stitch of power they can get their hands on. Mosby was prosecuted because she’s a Black woman Democrat, so Democrats should have her back. If Republicans take over, they will open the jails to free their people. Biden could, at the very least, be the president who pardons Black people who can’t rap.

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Elie Mystal



Elie Mystal is The Nation’s justice correspondent and the host of its legal podcast, Contempt of Court. He is also an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution, published by The New Press. Elie can be followed @ElieNYC.

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